Orissa High Court
Odisha Adarsha Vidyalaya vs Himadri Kumar Naik And Others on 16 September, 2021
Author: B. P. Routray
Bench: B. P. Routray
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.A. No.491 of 2018
Odisha Adarsha Vidyalaya .... Appellants
Sangathan, (Under the School and
Mass Education Department)
Bhubaneswar and others
Mr. D. R. Mohapatra, S.C. for S & ME Department
-versus-
Himadri Kumar Naik and others .... Respondents
Mr. Ayusman Mahanta, Advocate for Respondent No.1
CORAM:
THE CHIEF JUSTICE
JUSTICE B. P. ROUTRAY
ORDER
Order No. 16.09.2021
07. Dr. S. Muralidhar, CJ.
1. The present appeal is directed against an order dated 8th August, 2018 passed by the learned Single Judge allowing the W.P.(C) No.13129 of 2016 filed by Respondent No.1.
2. By the impugned order, the learned Single Judge directed the Odisha Adarsha Vidyalaya Sangathan (OAVS), the Appellants herein, functioning under the School and Mass Education Department of the Government of Odisha, to appoint Respondent No.1 in the post of Music Teacher in Odisha Adarsha Vidyalaya (OAV).
Page 1 of 73. It must be noted at the outset that while admitting the matter on 6th December, 2018, this Court directed that there shall be stay of the impugned order of the learned Single Judge. That stay order is continuing since.
4. The background facts are that the OAVS published an advertisement through the EdCIL (India) Ltd. on 23rd November, 2015 seeking applications for various teaching posts. One of such posts was Music Teacher. For this post, the "Essential Qualifications & Experience" are indicated as under:
"Essential:
(i) Senior Secondary School Certificate or Intermediate and Bachelor Degree in Music from a recognized University.
(ii) Competence to teach through English/Odia medium.
Desirable:
knowledge of computer application."
5. The advertisement itself set out a time table for receipt of the applications online. The last date for closure of the registration of applications was 29th December, 2015.
6. It is not in dispute that the Degree Certificate that the Petitioner produced along with his application was issued by the Utkal University. It was for a Degree of Bachelor in Arts (BA) where the subjects of examination were:
"Compulsory - English, Odia, ENVS, ISC
Elective-A - Anthropology
Elective-B - Sociology
Page 2 of 7
Honours - Music"
7. The Certificate stated that Respondent No.1 had passed the above BA Degree in the examination held in 2014 with First Class Honours and Distinction. The selection process concluded on 31st March, 2016. The Respondent No.1 was not selected for the reason that he did not possess the Bachelor's Degree in Music. Respondent No.3 was selected.
8. It is mentioned that in the counter affidavit filed in the writ petition by the present Appellants that Respondent No.3 possessed a Master's Degree in Music from the Utkal University of Culture. This was a two-year PG course in Hindustani Vocal. Since he had possessed a higher qualification in Music, he was selected.
9. Challenging his non-selection, the Petitioner first made a representation on 11/12th June, 2016 and thereafter filed W.P.(C) No.13129 of 2016.
10. It transpired that during the pendency of the said writ petition, a question arose about the equivalence of the Degree held by Respondent No.1 with other Degrees. Respondent No.1 appears to have filed an additional affidavit in response thereto placing on record a Notification dated 28th July, 2017 of the Utkal University of Culture, which reads as under:
"UTKAL UNIVERSITY OF CULTURE xxx xxx xxx No.2081 / UUC Dated 28.07.2017 NOTIFICATION In consideration of the recommendation of the Equivalence Committee and Notification Page 3 of 7 No.2243/UUC, dtd. 15.09.2016 issued by Utkal University of Culture and subsequent Resolution passed by the Board of Utkal University of Culture vide Resolution No.803 dtd.24.07.2017, the +3 B.A. (Hons.) Degree in Music (Hindustani Vocal) of B.J.B. (Autonomous) College, Bhubaneswar under Utkal University, Bhubaneswar is recognized as equivalent with the B.Mus Degree of Utkal University of Culture, Bhubaneswar up-to the academic year 2014-15.
By order of the Vice Chancellor REGISTRAR"
11. On the above basis, it was contended by Respondent No.1 before the learned Single Judge that since his Degree of BA (Hons.) was upto the academic year 2014-15, it should be recognized as equivalent to the B. Mus Degree of Utkal University of Culture and, therefore, Respondent No.1 should have been selected for the post of Music Teacher.
12. In the impugned order, learned Single Judge accepted the above plea of the Petitioner specifically referring to the aforementioned Notification dated 28th July, 2017. Accordingly, a direction was issued to appoint the Respondent No.1 as Music Teacher.
13. This Court has heard the submissions of Mr. D.R. Mohapatra, learned Standing Counsel for the School and Mass Education Department (S&ME)-Appellants and Mr. Ayusman Mahanta, learned counsel for Respondent No.1.
14. Mr. Mohapatra submits that the aforementioned Notification was prospective. In other words, it applied only to Page 4 of 7 advertisements issued after the date of Notification and not prior thereto. It is submitted that this was lost sight of by the learned Single Judge and Respondent No.1 was extended the benefit of the said Notification erroneously.
15. Mr. Mahanta, learned counsel for Respondent No.1, on the other hand, submits that the issue of equivalence was raised for the first time before the learned Single Judge, although there were no pleadings to that effect. Therefore, an additional affidavit was filed placing on record the above Notification. According to him, the Appellants made no submission regarding the said Notification before the learned Single Judge and, therefore, are now estopped from denying its applicability. Secondly, it is submitted that Respondent No.3 also had a BA Arts with an Honours in Music and, therefore, he too equally would not be qualified for appointment as a Music Teacher.
16. Having considered the above plea, the Court finds that the core question before the learned Single Judge was whether on the date of finalization of the selection for the post of Music Teacher in OAVS, Respondent No.1 was qualified in terms of the advertisement issued for the post. There can be no manner of doubt that on the date of issuance of the advertisement i.e. 23rd November, 2015 and even on the date of finalization of selection process i.e. 31st March, 2016, Respondent No.1 did not possess the essential qualification of a Bachelor's Degree in Music. What the Respondent No.1 did possess was a Bachelor Degree in Arts with the Honours subject being Page 5 of 7 Music. Clearly, therefore, Respondent No.1 did not possess the essential qualification of Bachelor Degree in Music from a recognized University.
17. Secondly, the question of 'equivalence' clearly did not arise in the facts of the case. It was nobody's case that the Degree that the Respondent No.1 possessed was not from a recognized University or that it should be treated equivalent to some other Degree. That was not even part of the pleadings. Thirdly, even the Notification dated 28th July, 2017 does not state that it would apply to a selection that had already concluded prior to the date of Notification. All that the Notification does is to permit those applying for a post for which the Bachelor's Degree in Music is essential to take advantage of the said Notification even if they had a Bachelor Degree in Arts with Music as an Honours subject. The condition was that such a BA Degree had to be awarded upto the academic year 2014-15. In the case of Respondent No.1, he could take advantage of such Notification for any post of Music Teacher advertised after the date of Notification and not prior thereto.
18. As regard the plea regarding Respondent No.3, the Court finds that he indeed possessed a higher qualification of a Master's Degree in Music as of the date of the advertisement. Clearly therefore, there was no question of Respondent No.1 being prejudiced by the selection of Respondent No.3.
Page 6 of 719. For all of the aforementioned reasons, the Court finds that the impugned order of the learned Single Judge is unsustainable in law and is hereby set aside.
20. The writ appeal is allowed, but in the circumstances, with no order as to costs.
( Dr. S. Muralidhar) Chief Justice (B.P. Routray) Judge M. Panda Page 7 of 7